The gap between how we treat non-citizens and criminally accused in Canada may be perpetual. The immigration bar has, for years, struggled to close the distance between the rules applied to two groups of people in Canada. The solid regime of constitutional protections that permeates criminal law and ensures the protection of a person charged with a crime from arbitrary state action has never quite been grounded in immigration law. The use of secret evidence in hearings, the assumption that the written notes of police or government officials are accurate and the confounding view that if a prospective surety knows the detainee too well they may not be trustworthy enough are examples of concepts unknown in criminal law. Yet, time and time again, we are faced in immigration hearings with these and other “principles” that cloud and diminish any attempt to realize a sense of justice and fair play in immigration law.
And now the Federal Court of Appeal has rendered a decision that furthers this distance and reinforces the belief that a non-citizen is just a little less worthy than any person accused of a crime.